Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Imagine owning a with no access to a public road except through your neighbor's property. You might think claiming an is straightforward. But what if the necessity didn't exist when the properties were originally divided? This is a common pitfall in property disputes under the .
The key question here is: Can an be denied because necessity didn't exist at the time of between the parties? The answer, generally speaking, is yes. Courts strictly enforce this requirement, and failure to prove it can lead to dismissal of claims. This blog dives deep into the legal principles, judicial precedents, and practical tips, drawing from established case law. Note: This is general information, not specific legal advice. Consult a qualified lawyer for your situation.
An arises under , when a single piece of land (tenement) is divided into two or more parts, and one part () cannot be used at all without access over the other (). It's not about convenience—it's about at the moment of .
As per the Act: ... arises only where by a , or , a single tenement is divided into distinct and separate tenements and any of the separate tenements is so situated that it cannot be used at all without enjoying an easement over the other such tenement or tenements. 2020 0 Supreme(Mad) 403
Key requirements include:- : Both tenements must have been under common ownership before division.- : Division via sale, inheritance, or .- : No viable access for the at the time of . 2024 0 Supreme(Ker) 433
Mere common ownership isn't enough; it must be proven that the properties formed a single unit pre-. 2020 0 Supreme(Mad) 403
If necessity didn't exist when the properties were severed, no easement arises—period. Post- changes, like road closures, don't retroactively create the right. This strict rule prevents abuse and upholds property rights.
In one landmark view: The right of arises only in cases of of tenements and the unity of ownership of the dominant and at some time or other is essential... to constitute an , a single tenement must have been divided into two or more separate and distinct units. 1984 0 Supreme(Pat) 224
Courts have set aside lower decrees for overlooking this. For instance, where plots never formed a single unit: Plot No. 179... ever formed a single unit along with plot No. 178... The claim failed entirely. 1984 0 Supreme(Pat) 224
Unity of ownership is the (essential condition): An can arise only on the of a tenement. 1991 0 Supreme(Ker) 190
From additional precedents:- Easement requires proof that dominant and servient tenements were joint before by or . 2019 0 Supreme(Cal) 772- No easement if no prior joint ownership or ; alternative paths defeat claims. 2003 0 Supreme(Ker) 451
Courts consistently deny claims lacking these elements:
In a dispute, the plaintiff failed because plots weren't a unified tenement pre-. The emphasized: would arise only on of tenement and when there is without which the plaintiff cannot use their property on . 2019 Supreme(Online)(KER) 63935
Even if unity existed, an alternative way—even inconvenient—negates necessity: It is the well settled law that easement by necessity must fail, when a convenient or inconvenient alternative way is available. 2024 0 Supreme(Ker) 433
In another suit, the plaintiff couldn't prove a pathway's existence or 20-year prescriptive use, and necessity failed sans . 2017 0 Supreme(Ker) 1343
These cases show lower courts err by granting easements without strict proof, often reversed on appeal.
Don't confuse with:- : Created by document; survives even if necessity ends (not governed by ). 2006 4 Supreme 131 Misconstruing grant as necessity is a under . 2006 4 Supreme 131- (): Requires 20+ years of open, peaceful use. Successful in some passage disputes, but fails without proof. 2017 0 Supreme(Ker) 1343- : Less absolute, based on prior use, not strict necessity. 2013 0 Supreme(Ker) 146
An does not get extinguished under ... Limit of the easement acquired by grant is controlled only by the terms of the contract. 2006 4 Supreme 131
Even if granted, necessity easements extinguish under if alternatives emerge: Such an easement will last only as long as the exists. 2006 4 Supreme 131
Convenience isn't enough—must be absolute. 1984 0 Supreme(Pat) 224
In one case: arises on the of tenements. 2003 0 Supreme(Ker) 451
To succeed:1. Plead precisely: , details, at division (no alternatives).2. Gather evidence: Title deeds showing common ownership and pre- layout.3. Frame issues: Request court to determine these facts.4. Consider alternatives: Plead grant or prescription if applicable.5. Appeal strategy: Argue misconstruction of necessity vs. grant as a substantial question. 2006 4 Supreme 131
Property disputes hinge on these nuances. For tailored guidance, reach out to a property law expert. Stay informed, protect your rights!
References:1. 2006 4 Supreme 131 – Necessity vs. grant distinctions.2. 2020 0 Supreme(Mad) 403 – Single tenement requirement.3. 2024 0 Supreme(Ker) 433 – Alternatives defeat claims.4. 1984 0 Supreme(Pat) 224 – Denial for no .5. 1991 0 Supreme(Ker) 190 – Unity as .6. 1988 0 Supreme(Ker) 219 – Grant persistence.7. 2019 Supreme(Online)(KER) 63935, 2019 0 Supreme(Cal) 772, 2017 0 Supreme(Ker) 1343, 2013 0 Supreme(Ker) 146, 2003 0 Supreme(Ker) 451 – Supporting precedents.
#EasementOfNecessity, #PropertyLawIndia, #EasementsAct
Right of way also can be claimed by pleading and proving right of easement by necessity, consequent to severance of tenements. 14. ... So, in order to substantiate right of easement by necessity, there should be pleading to the effect that the properties were held jointly and on severance, there arose a necessity for enjoyment of a part of the property so separated or severed by burdening another portion of the property. ... Therefore, the contention raised by the lea....
Unity of ownership and severance of tenements being admitted by the parties, the plaintiff is entitled to raise a plea of, right of way as an easement of necessity. This is in terms of Section 13(e) of the Easement Act. ... Merely because the said access may be inconvenient, it does not entitle the plaintiff to claim another way as an easement by necessity. Existence of an alternate way, however inconvenient it may be, disentitles a claim for easement#HL_END....
Thus, it would seem that in the present ease an easement of necessity in respect of the passage in question had existed at one time. ... in holding that there was no easement of necessity. ... Though easement of absolute necessity and quasi-easement may alike be created by implication of law on a severance of the tenements, the point of distinction arises between these two classes of easement, in cases where the do....
It is therefore clear that at the time of severance of two tenements there existed a pathway through the north era portion of the plaint B schedule property. ... On the basis of the evidence the trial court held that there existed a pathway as claimed by the plaintiff and that the plaintiff had a right of way through the plaint B schedule properly as claimed by way of an easement of necessity. ... Assume that the plaintiff has only a co-owners hip right over the said properties, can it be said that she ....
The necessary concomitant of an easement of necessity is that they arise on severance of tenament which was once a one unit. ... easement of necessity. ... ... (22) S. 13 envisages how an easement of necessity comes into existence which discloses in unequivocal terms that easement of necessity comes into existence not as a result of any prescriptive right but as a result of severance of ownership ... ... (c) the ....
It is contended that the plea of easement by necessity was raised only as an alternative plea and that, once the plaintiff was able to establish the ingredients required to claim an easement by prescription, the contention relating to easement of necessity pales into insignificance. ... “Were the courts below right in granting a decree in favour of the plaintiff when the plaintiff contended that she has acquired right of easement by prescription and also contended that there was #HL_S....
I entirely agree with the learned District Judge that this is not an easement of necessity. ... This accommodation as it existed during the common ownership cannot in the strict sense be described as an easement but is usually described as a "quasi-easement". Blackacre is sometimes described as the quasi-dominant tenement, and Whiteacre as the quasi-servient tenement. ... There is ample authority for the proposition that right of irrigation being both apparent and continuous emerges as a quasi-#HL_START....
As provided in S.28, an easement of necessity is coextensive with the necessity as it existed when the easement was imposed. ... Quasi easement is available even when the property is otherwise enjoyable. Its limit is not restricted to absolute necessity, but controlled by the extent of the apparent and continuous user which existed at the time of severance. ... It is an accommodation which existed during common own....
Easement of necessity would arise only on severance of tenement and when there is absolute necessity without which the plaintiff cannot use their property on severance ... A suit for declaration of prescriptive right of easement and easement by necessity ended in dismissal in both the Trial Court and the First Appellate Court ... A way is scheduled in the plaint and claimed easement by necessity....
Easement of necessity arises only upon severance of tenements either by transfer or by bequest or by partition. It is true that easement by grant also could be bad by these methods but it could be had in other cases also whereas easement of necessity cannot. ... Easements of necessity are dealt with in Clauses (a), (c) and (e) of S.13 of the Easements Act. It is an easement arising upon a grant by implication of law and not by any contractor concessi....
Therefore, in order to claim easement of necessity over servient tenement, plaintiff is under obligation to prove that the property, being dominant tenement and servient tenement was joint before it was severed by transfer or partition. It is pertinent to note that the respondent did not seek relief in the suit praying for right of easement of necessity over 'B' schedule passage. It is already noted that easement of necessity arises on the severance of tenement. On the contrary, it is admitted by the plaintiff/respondent in course of his evidence that 'B' schedule passage i....
The rationale or the legal basis of this kind of easement can be traced to the creation of an implied grant. Really, easement of necessity is an easement, which under particular circumstances the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. In the decision reported in Maniyan Krishnan v. Nanukuttan, 1986 KLT 203, a single Bench of this Court has held that, That easement of necessity arises on the severance of tenements.
It is an accommodation which existed before severance in the tenement when it continued under common ownership. Though easement of necessity and also quasi easement arise on severance of tenements by bequest, transfer or partition, in the case of quasi easement it is not so absolute as in the case of easement of necessity, but only qualified. 5. Sub sections (b), (d) and (f) of section 13 of the Indian Easements Act, 1882, deal with what is called “quasi easement”. Generally, it is accepted that right of way will not come under quasi easement since such right depends upon u....
Further, it has come out in evidence that there is a pathway for the plaintiff through the western side of item No.1 for ingress and egress to the eastern road. Further easement of necessity cannot be claimed in the absence of severance of tenements. Easement of necessity arises on the severance of tenements. The necessity must be absolute and not convenient mode of enjoyment. The necessity should have come into existence on severance of tenements into two distinct tenements. Here, in the instant case the plaintiff has no case that both the servient and do....
An easement of necessity can arise only on the severance of a tenement. It is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all. Unity of ownership of the dominant and servient tenements at some time or other is the sine qua non for an easement of necessity. Away of necessity arises, where on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without any legally enforceable means of access.
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